Without expressing any opinion whether there was a want of power to issue the bonds on the ground that the railroad company to which the subscription was made and the bondsfissued was not one whose line of road was “near” to the township; or if it be not “near” the township, whether, under the recital in the bond, this fact could avail to defeat a recovery by a bona fide holder for value, I concur in the *676result on the ground that the case is controlled by Harshman v. Bates Co. [supra], decided by the United States supreme court, at the October term, 1875. The judgment of the court in that case held the act of March 23, 186S, recited in the bonds as the authority for their issue, unconstitutional, and this is the only act authorizing township bonds, like these here in suit, ever passed by the general assembly of Missouri. The circumstance in this case, that two-thirds of all the voters of the township did in fact vote for the subscription, is without legal significance, and cannot have the effect to validate the act of March 23, 1868, in respect to the matter, in which the supreme court holds it to conflict with the constitutional requirement.
[NOTE. From this decision the plaintiff took the case to the supreme court on writ of error. The judgment was there reversed in an opinion by Mr. Justice Harlan. 108 U. S. 208, 2 Sup. Gt. 501. It was held that there was but a single question involved, viz. whether there was legislative authority for the issue of bonds. “The word ‘near’ is relative in its signification.” and the meaning of the word must depend upon the circumstances of each case. “As between the township and a bona fide holder for value, * * * the courts should acquiesce in the determination by the qualified voters and the local authorities that the road in question was near to Lexington township.” Yon Hoxtrup v. Madison City. 1 Wall. (68 U. S.) 291; Myer v. Mus-catine, Id. 384, cited with approval.]Judgment for the defendant